Supreme Court TV? Nice Idea, but Still Not Likely

Justices are expected to reject a request to allow live television coverage of the challenge to the health care law, but it is hard to say why.

ADAM LIPTAK

WASHINGTON — A couple of weeks ago, the Supreme Court agreed to hear a constitutional challenge to President Obama’s health care law. The case is a once-in-a-generation blockbuster, and the court underscored its importance by scheduling five and a half hours of oral arguments, the most in any case since 1966.

The day after the announcement, Brian P. Lamb, the chairman of C-Span, wrote to Chief Justice John G. Roberts Jr. with a modest request. “We believe the public interest is best served by live television coverage of this particular oral argument,” Mr. Lamb said.

The request is, of course, doomed. Yet it is hard to say why.

The Supreme Courts of Canada and the United Kingdom allow cameras. What the public sees in those countries, and what it would see here, is something not always prominent in the elected branches of our government: able public servants with a complete mastery of difficult materials grappling seriously with matters of surpassing consequence. It probably inspires confidence. It certainly dispels ignorance.

Justice Elena Kagan, the member of the court who has been most outspoken about the value of television coverage, recently recalled what it was like to see Supreme Court arguments before she joined the court.

“Everybody was so prepared, so smart, so obviously deeply concerned about getting to the right answer,” she said at the Aspen Institute in August. “I thought if everybody could see this, it would make people feel so good about this branch of government and how it’s operating. And I thought it’s such a shame actually that only 200 people a day can get to see it.”

There will probably be just 50 seats available to the public at the arguments in the health care case. People hoping for a shot at one of them will probably wait in line in the cold for two nights or longer. Forcing citizens to endure that sort of hardship for a chance to see their government at work would seem to require a substantial justification.

Lisa T. McElroy, a law professor at Drexel University who has been studying the justices’ rationales for excluding cameras, said she concluded that “privacy and secrecy do not preserve public confidence in the court, but may actually diminish it.”

A coalition of news organizations, including The New York Times, has also urged Chief Justice Roberts to allow coverage of the health care argument.

The arguments against cameras are mostly rooted in paternalism or self-interest. Some justices say the public cannot be trusted to understand what goes on at oral arguments and how the arguments figure in the work of the court. Others worry that additional public scrutiny would alter the behavior of lawyers and justices for the worse. Still others say they fear harm to their personal privacy or to the court’s prestige.

In an interview, Mr. Lamb said he had heard one main objection from the justices. “It’s the sound bite,” he said. “They don’t like, in the modern age, that people can sound bite them.”

C-Span would carry entire arguments, but it is true that others might use excerpts. It is also true that newspaper reporters use the text equivalent of sound bites all the time. We call them quotations.

The justices’ real fear is probably not that their questions would be taken out of context but that they would be made to look silly, as they do occasionally say goofy things.

In a speech in July, Justice Ruth Bader Ginsburg collected 10 examples of amusing comments from the term that had just ended, including questions about a “9,000-foot cow,” Satan and whether smoking marijuana amounted to the destruction of evidence.

Justice Ginsburg drew this conclusion: “From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon.”

There is room for compromise, and the court might consider half-measures and baby steps. When other courts cannot accommodate spectators in a single courtroom, for instance, they often arrange for a closed-circuit transmission to an overflow room within the courthouse. It is hard to see an objection to that, or to closed-circuit transmissions to other courthouses.

Justice Stephen G. Breyer, writing for four justices, discussed that idea in a dissent last year. He suggested that there would have been no harm in a plan that contemplated remote but carefully supervised viewing from courthouses around the nation of a trial over same-sex marriage in San Francisco.

Mr. Lamb, for his part, analyzed the fundamental question this way.

“If you can’t do this in public and you’re doing the public’s business,” he said, “then something is wrong with this picture.”

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In May, I wrote about a confidential decision from the Judicial Council of the Sixth Circuit, which hears misconduct complaints about federal judges in Tennessee and three other states. The decision, by a 10-to-8 vote, said it was all right for Judge George C. Paine II, the chief bankruptcy judge in Nashville, to keep his membership in the Belle Meade Country Club. The club has about 600 voting members, all of them white men.

On Nov. 17, a panel of five judges on a committee of the Judicial Conference of the United States unanimously reversed the decision, calling it clearly erroneous and saying Judge Paine had committed misconduct.

“The conclusion that Belle Meade engages in invidious discrimination against women and African-Americans is inescapable,” the judges said.

The panel, noting Judge Paine’s efforts to integrate the club and his impending retirement, imposed no punishment.

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